Citation Nr: 0723406
Decision Date: 07/30/07 Archive Date: 08/14/07
DOCKET NO. 05-38 759 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for a back disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. Buck, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1975 to
October 1978, and from July 1980 to October 1988.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which denied entitlement to the benefit
currently sought on appeal. The veteran's notice of
disagreement was timely received and a statement of the case
issued in November 1996. He perfected his appeal by
submitting a timely VA Form 9, Substantive Appeal in January
1997. A supplemental statement of the case was issued in
July 1999; however, apparently due to the veteran's moving
out of the Waco RO jurisdiction, the appeal was not certified
to the Board in conjunction with that application. Instead,
when the veteran inquired as to the status of the claim upon
moving to the jurisdiction of North Little Rock, Arkansas, it
was treated as an attempt to reopen a previously denied
claim, and improperly adjudicated under the standard of new
and material evidence. Based on the January 1997 Substantive
Appeal, the Board has proper jurisdiction over the merits of
the service connection claim.
The veteran has twice submitted informal claims for service
connection for bipolar disorder. See two VA Forms 21-4138,
Statement in Support of Claim, received in October 1996 and
April 2001. To date, no action has been taken on this claim.
It is hereby referred back to the RO for appropriate
disposition.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran seeks service connection for a back disability
which he has claimed is either directly due to an in-service
bicycle and motor vehicle accident in May 1984, or
alternatively, due secondarily to his service-connected rib
and shoulder disabilities. See statement accepted as a
notice of disagreement, received in May 2005; see also VA
Form 21-4138, Statement in Support of Claim, received in
October 1997.
The veteran underwent VA examination in conjunction with the
claim in September 1998; however, no opinion was rendered as
to etiology of his current back disorder. The Board is
required to seek such an opinion if the information and
evidence of record does not contain sufficient competent
medical evidence to decide the claim, but contains competent
evidence of a current disability, establishes that the
veteran suffered an event, injury or disease in service, and
indicates that the current disability may be associated with
the in-service event, injury or disease. 38 C.F.R.
§ 3.159(c)(4) (2006).
Here, the current medical evidence establishes that the
veteran receives treatment for lumbar radiculitis. The
veteran's service medical records confirm that in May 1984,
he was riding a bicycle when he was struck by a truck. The
question therefore remains whether the evidence indicates
that there may be an association. Such an indication will be
found when there is "credible evidence of continuity of
symptomatology such as pain or other symptoms capable of lay
observation." McLendon v. Nicholson, 20 Vet. App. 79, 83
(2006).
In support of his claim, the veteran has submitted his own
statements, as well as lay statements from friends and family
who knew him at the time of the accident, credibly indicating
that the veteran has experienced back pain from the time of
the accident until the present. Based on this evidence, a
medical examination and opinion should be sought. Also,
because the veteran claims that his current back pain could
be secondary to his service-connected disabilities, an
opinion on that matter also should be sought.
It appears from the record that the veteran receives regular
medical treatment through the VA Medical Centers in Memphis,
Tennessee and Waco, Texas. Records from December 2002
forward should be obtained.
Accordingly, the case is REMANDED for the following action:
1. Obtain outstanding VA outpatient clinical
records from the VAMCs in Memphis, Tennessee
and Waco, Texas, along with any associated
outpatient clinics, from December 2002 forward.
2. Schedule the veteran for a VA spine
examination to determine the nature and
etiology of any current back disorder, to
include all segments of the spine. All
diagnostic testing deemed necessary should be
conducted and results reported in detail. The
claims folder should be made available to the
examiner and reviewed. Based on the
examination and review of the record, the
examiner is asked to render opinions as to the
following questions:
a. whether it is at least as likely as not
(probability of fifty percent or more) that
the veteran's in-service bicycle accident in
May 1984 resulted in his current back
disorder.
b. whether it is at least as likely as not
(probability of fifty percent or more) that
the veteran's current back disability is
proximately due to, or the result of, his
service-connected disabilities of residuals
of left scapula fracture and status post
thoracotomy, left 3rd and 4th ribs fracture.
That is also to say, has the veteran's back
disability increased in severity due to his
service-connected disabilities?
A rationale for any opinions expressed is
requested.
3. Thereafter, readjudicate the issue on
appeal. If the determination remains
unfavorable to the veteran, he and his
representative should be furnished a
supplemental statement of the case which
addresses all evidence associated with the
claims file since the last statement of the
case. The veteran and his representative
should be afforded the applicable time period
in which to respond.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
J. E. Day
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).